California Supreme Court shoots down portfolio bar exam proposal, but clears path to state-specific exam
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Amidst the flurry of proposed changes to the California licensing process, the Portfolio Bar Exam allowing law school graduates to demonstrate competency via supervised practice, graded work and a performance has been stopped cold while the plan to create a propriety exam received a nod.
On Oct. 10, the California Supreme Court rejected the proposal to run a pilot program for a pathway to licensure without taking the bar exam, citing “an array of ethical and practical problems that would compromise the PBE’s fairness, validity and reliable as a measure of an applicant’s competence,” the administrative order states.
The vote comes amidst months of controversy around California’s plan to launch a propriety bar exam to be created by the Kaplan Exam Services with options for a remote test in February. The state Supreme Court earlier rejected the plan to create a 200-question multiple-choice exam, but it was then kicked back to the court for reconsideration earlier this month.
The state has been trying to determine the best way to test bar candidates for minimum competency since 2018, when the State Bar Board of Trustees created the California Attorney Practice Analysis Working Group. In 2023, the Blue Ribbon Commission on the Future of the Bar Exam issued a report of recommendations, including developing a California-specific bar exam; allowing reciprocity for attorneys licensed in other jurisdictions; and allowing a graded, supervised practice portfolio plus two performance tests to be an alternative to taking the bar exam. The report also outlined topics and skills a California-specific bar exam would include.
There is pressure to move forward on changes, because the state bar’s admissions fund faces insolvency in 2026. This year, the fund forecasts a $3.8 million deficit and projects it will end this year with $3.3 million in reserves.
While Thursday’s order didn’t specifically address the plan to use Kaplan’s test instead of the in-person exam created by the National Conference of Bar Examiners now used, it did approve the bar “to develop a California-specific bar examination” and offered content areas for a state-specific exam.
These include 12 topics: administrative law and procedure; civil procedure; constitutional law; contracts; criminal law and procedure; evidence; professional responsibility; real property; torts; employment law; family law and estate planning; and trusts and probate.
Seven skills were also approved for testing: drafting and writing; research and investigation; issue-spotting and fact-gathering; counsel/advice; litigation; communication and client relationship; and negotiation and dispute resolution. The court also recommended a look at how new technologies, including artificial intelligence, could help “innovate and improve” this type of testing.
The court’s concerns about the portfolio pilot plan stem from the plan’s reliance on the candidates’ supervisors to adequately train and evaluate the recent graduates’ independent work on real clients’ case, according to the order. Solutions to potential “ethical tensions” that could make supervisors lose objectivity and reliability in evaluating the candidates are not addressed in the proposal, the order states.
“The order’s unsubstantiated fears about grading and supervision issues are exactly what a pilot would have investigated and evaluated,” wrote Susan Smith Bakhshian, a member of the Blue Ribbon Commission and a professor at Loyola Law School, Los Angeles, in an email.
“California lawyers supervise those who are awaiting exam results in much the same manner as the portfolio bar exam proposes—yet the order expresses no concern over that long-standing practice,” she added.
The decision to prohibit the pilot program to explore portfolio licensing “disappointing,” Deborah Jones Merritt, Moritz College of Law professor emerita wrote in an email to the ABA Journal. She worked with the team that developed the bar exam proposal including the portfolio exam.
“Here’s an irony: While the [California Supreme Court] thought about this proposal for over 9 months, Oregon went ahead and implemented a similar proposal,” she wrote. “The Oregon program now has over 100 employers participating, held its first portfolio grading session in August, and will hold the second portfolio grading session later this month. None of the ethical or practical issues identified by the California Supreme Court have emerged.”
In March, the Washington Supreme Court approved, in concept, additional pathways to the bar involving supervised practice. No implementation dates have been finalized. In September, Nevada approved a three-pronged plan to licensure that includes supervised practice.
The state supreme court didn’t take action on another proposal to give extra points to applicants who take the experimental version of that new test.
The California court also rejected the commission’s recommendation to offer reciprocity to licensed lawyers from other states without taking the bar, and another plan to lower the bar pass cut score from 1390 to 1350.
